Pack, Impeach or Cry?

With a month to reflect on the Supreme Court term most recently concluded, articles are coming out about the Court’s rightward movement and what liberals can do about it. I think Emily Brazelton summarizes things efficiently here.

The legal left is taking the summer to think. In the next few weeks, the American Constitution Society and the YearlyKos Convention will host panels on the Supreme Court’s future and what the left can do about it. The short answer, of course, is cry. And then try to win the next election.

But is there something else we can do in the here and now to avoid such bad terms as the one gone past? Lest we forget,

In one full term, this Court has severely curbed local efforts to promote racial diversity in schools, upheld a right-wing ban on a necessary medical procedure for women, curbed students’ free speech rights, crippled Congress’ ability to keep corporate money out of political advertising, prevented taxpayers from challenging the constitutionality of Bush’s faith-based initiatives, made it almost impossible for women to prevail on claims of longterm sex discrimination . . . and they’re just getting started.

In Thursday’s New York Times, author Jean Edward Smith actually suggested the possibility of the next Congress packing the Supreme Court by increasing the number of justices. Following a discussion of the history of such measures, Smith concluded:

If the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective. It requires only a majority vote in both houses to add a justice or two. Chief Justice John Roberts and his conservative colleagues might do well to bear in mind that the roll call of presidents who have used this option includes not just Roosevelt but also Adams, Jefferson, Jackson, Lincoln and Grant.

That certainly sounds like a drastic measure that would be quite difficult to pull off politically, and nothing the cautious Democratic leadership would be willing to pursue any time soon from the looks of things.

Is there some lesser option? The trouble is that the system is designed to protect judicial independence, which leaves us all largely at the mercy of bad justices, barring impeachable offenses. Congress does seem to be looking for alternatives, though, as Politico reported yesterday.

Sen. Arlen Specter (R-Pa.) plans to review the Senate testimony of U.S. Supreme Court Chief Justice John Roberts and Justice Samuel A. Alito to determine if their reversal of several long-standing opinions conflicts with promises they made to senators to win confirmation.

Specter, who championed their confirmation, said Tuesday he will personally re-examine the testimony to see if their actions in court match what they told the Senate.

“There are things he has said, and I want to see how well he has complied with it,” Specter said, singling out Roberts.

The Specter inquiry poses a potential political problem for the GOP and future nominees because Democrats are increasingly complaining that the Supreme Court moved quicker and more dramatically than advertised to overturn or chip away at prior decisions.

Making decisions contrary to testimony at confirmation hearings is not going to rise to the level of impeachment either, and the Specter probe is aimed at informing Congress on possible changes to its confirmation process (I thought the largely ceremonial hearings were a sham at the time, but that’s another topic). Perhaps this sort of thing will shame Alito and Roberts into being more moderate, but then again, we are dealing with two justices who willfully misled the Senate in hearings, so maybe they are impervious to being shamed.

If there’s any other course of action that might keep the Court from eroding individual rights so brazenly the next term, I would be interested to hear it. For now, crying and trying to win elections looks like the only viable option — along making sure 87-year-old John Paul Stevens has good enough medical care to make it through the next 18 months.

Bill Donohue Wants More Catholics on the Court

That darling of the liberal blogosphere Bill Donohue, head of the Catholic League, is at it again, criticizing those who dare wonder about the all-Catholic five-justice majority in last week’s Supreme Court decision on partial birth abortion (the four dissenting justices were all non-Catholics). Here’s Donohue’s view on religion’s role in the legal system.

The pushback from conservative Catholics was immediate, even pre-emptive. Bill Donohue, president of the Catholic League for Religious and Civil Rights, declared, “We need more, not fewer, Catholics on the Supreme Court.”

I still subscribe to the quaint idea that judges should uphold the laws and the Constitution, rather than the tenets of any particular religious faith.

Charles Fried’s Confusion

While I’m criticizing Thursday op-eds, Charles Fried of Harvard Law School has a column in the New York Times titled “Supreme Confusion” in which he argues that the Supreme Court’s recent partial birth abortion decision doesn’t fit with precedent.

Still, this most recent decision is disturbing, because in 2000, in a similar case, the Supreme Court struck down a Kansas partial birth abortion ban. The Kansas law was unacceptably vague, but the principal reason for the court’s earlier decision was that there was responsible medical opinion that sometimes the procedure was less risky for the mother, and therefore in such cases the ban posed an undue burden.

I have no direct quibble with Fried’s analysis, but the fact that the law at issue in the 2000 case came from Nebraska, not Kansas, hurts the professor’s credibility.

Maybe there was a companion case involving a Kansas law, in which case Fried could be correct, though I see no indication of that in my Googling. Once I see a basic mistake like this, it’s hard for me to take the rest of what an author has to say seriously.

UPDATE: They changed the online article to say Nebraska instead of Kansas. Not sure what appeared in the print edition today.

Stenberg and the Partial Birth Decision

Former Nebraska Attorney General Don Stenberg, whose name is attached to the 2000 Supreme Court case of Stenberg v. Carhart that struck down that state’s partial birth abortion ban, knows that the change in Court personnel accounts for the opposite result in today’s partial birth decision:

A U.S. Supreme Court ruling today gives Nebraska the “partial-birth” abortion ban it unsuccessfully sought seven years ago, former Attorney General Don Stenberg said.

Stenberg said the ban upheld today is similar to a Nebraska law that the high court struck down. In its ruling today, the court said the federal ban it upheld was narrower than Nebraska’s attempted ban.

He said a change in the makeup of the Supreme Court is why the ban was upheld today.

“It shows how important it is who is serving on the court and what their judicial philosophy is,” said Stenberg, who in April of 2000 appeared before the U.S. Supreme Court in support of Nebraska’s 1997 law banning “partial-birth” abortions.

Over at SCOTUSblog, Marty Lederman notes “The Profound Effects of Justice O’Connor’s Retirement” and  Lyle Dennitson reviews the angry reaction of Justice Ginsburg:

She said the federal ban “and the Court’s defense of it cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court — and with increasing comprehension of its centrality to women’s lives. A decision of the character the Court makes today should not have staying power.”

That final comment, concluding angry remarks that were delivered without an open display of emotion, clearly was a suggestion that the ruling might not survive new appointments to the Court — just as the arrival of Chief Justice John G. Roberts, Jr., and, especially, Justice Samuel A. Alito, Jr. — had led to the switch she claimed had come about this time. Ginsburg pointedly noted that the Court is “differently composed than it was when we last considered a restrictive abortion regulation” — in Stenberg in 2000.

I’m far from a constitutional scholar, and I’m aware that such people write treatises on things like this, but I wonder: how can the Supreme Court set aside the 2000 partial birth decision only seven years later and permit this ban?

I understand that the 5-4 majority in today’s decision did not directly overturn Stenberg, and that the 2003 law Congress passed was slightly different from the Nebraska ban in some ways, but everyone realizes that this change happened because the makeup of the Court changed. Doesn’t that take away the respect people should have for the law when the results on contentious issues are so malleable? Or is it perfectly OK to say that elections have consequences, including this one?